Of Interest

Following 3 1/2 days of testimony, a Berkshire Superior Court judge yesterday acquitted a former Williams College student of raping a fellow student last year.

Superior Court Judge Margot Botsford said the differences in testimony from the defendant, 20-year-old Mark H. Foster Jr., and his accuser made it impossible for her to conclude beyond a reasonable doubt whether Foster was guilty. The trial was held before Botsford without a jury.

Note that the article is entitled “Ex-student acquitted of rape”. The Eagle knows better than to refer to Foster as a current Williams student.

That raises the question of what Foster will do now. I suspect that his official status vis-a-vis Williams is leave of absence. I suspect that he will try to re-enroll as a student. I am sure that the College will not be pleased to see him again. The College might try and prevent him from coming back via some sort of disciplinary action, but that is a chancy endeavor at best.

Perhaps a better solution would be a compromise whereby Foster agrees to take another year off and the College promises not to make trouble for him when he re-enrolls in the fall of 2006. This would give his victim/ex-girlfriend a chance to graduate and allow some more time for old wounds to heal.

Foster, of Concord, was charged with one count of rape. He was accused of raping a fellow student March 16, 2003, after they returned to his dormitory room following a party on the Williams campus.

The case sparked a review of polices at Williams after the alleged victim, then 19-year-old Meryl Gensheimer, claimed the college had failed her. In an interview with The Boston Globe, Gensheimer, who is from Maine, said that no one sent her to the hospital for a rape exam or suggested that she call police when she reported the incident to the college’s health center.

I think that Gensheirmer’s first name is actually Maryl, not Meryl.

The Eagle published Gensheimer’s name after her identity was revealed by The Globe.

According to The Globe article, which was later reprinted in The Eagle, college officials were still looking into the incident 2 1/2 months after it occurred, and Gensheimer went to Williamstown Police for help. Williamstown Police presented the case to a Berkshire County grand jury in May 2003, resulting in Foster’s indictment.

After Botsford announced the verdict yesterday morning, Foster slumped in his chair and began to slide sideways until he was grabbed by one of his attorneys sitting next to him.

It has been a tough year for Mark Foster.

Gensheimer, who was visibly shaking when the attorneys presented their closing arguments yesterday morning, quickly left the courtroom accompanied by her family.

But probably a tougher year for Maryl Gensheimer.

“Justice was done,” said Foster’s attorney, John Callahan of Northampton. “It’s awful tough on all the people involved, but the system works.”

Was justice done in this case? I don’t know. It all depends on what sort of guy Foster is. What was in his head and his heart? Is he a good person? Did he respect Gensheimer’s desire to postpone sexual intercourse? Was he honestly mistaken in his belief as to Gensheimer’s wishes that night? If so, then perhaps the punishments that he has already suffered — a year of purgatory, shame and embarassment in the eyes of all around him, a permanent label of “accused rapist” that will follow him forever — are enough. Perhaps justice was done.

If, on the other hand, he is a bad guy — someone who has made a habit of having sex with women who were not fully in favor of the act, someone who was intent on having sex with Gensheimer regardless of her protestations, someone who knew, at that moment, that Gensheimer was unwilling and who went ahead anyway — then justice was not done.

According to trial testimony and Eagle files, Foster and Gensheimer were dating and had engaged in consensual sexual activity, which did not include intercourse, in the days before the incident occurred.

This was a detail that previous articles on the incident had not made clear. Foster and Gensheimer had been described as “dating” and as boyfriend/girlfriend, but the extent of their relationship was not specified. Of course, the phrase “sexual activity” covers a pretty broad range, but “date rape” is generally used to describe attacks that happen prior to the stage in a relationship when “consensual sexual activity” has already occured.

This certainly makes it more plausible that Foster was honestly mistaken that night.

Under cross-examination by Assistant District Attorney Paul J. Caccaviello yesterday morning, Foster testified that Gensheimer had said that she wanted to have intercourse with him, but not that night. However, after the couple went back to Foster’s room and began to become intimate on the morning of March 16, 2003, Foster said Gensheimer never told him she didn’t want him to continue.

“You heard her say ‘no,’ didn’t you?” Caccaviello said.

“No, I did not,” Foster replied.

Powerful stuff. At this point, Foster has little choice but to testify as he has. The other option is jail. At the same time, his claim is not implausible. Although I am too old for this sort of commentary, I would wager that most sexual encounters at Williams are not proceeded by dialogue of the “Shall we have sex?” — “Yes, let us have sex right now.” sort.

In closing arguments, Callahan claimed that the sexual relations between Foster and Gensheimer were consensual and that Gensheimer’s actions on that night were not consistent with what happens when a rape occurs.

He said that the incident occurred “virtually in an open room” in Foster’s suite and that if anything unusual between the couple had occurred that morning, several other students also in the suite would have known.

“There was no outcry whatsoever,” Callahan said.

He also said that prosecutors had presented no expert testimony concerning rape trauma, and that Gensheimer never showed anyone any physical injuries that she said she suffered during the attack.

Callahan said Foster’s story had never changed, while Genshiemer’s had.

I don’t know if the transcript for the trial is public. I certainly don’t see it anywhere on the web.

Caccaviello said expert testimony on rape trauma was not required because the incident involved two people who knew each other.

“What happened is that Meryl Gensheimer could not come to grips with having been raped by someone who was her friend and whom she had been dating,” Caccaviello said.

“She was very sure she didn’t want to have sex with Mark Foster” on the night in question, Caccaviello added. “She told him so repeatedly.

“In terms of her actions, consider what’s important to her. She didn’t want to have sex with him that night and he did it, anyway,” Caccaviello said.

Someone, perhaps the Record, ought to do a long article on this story. Although there is much sadness, there are also lessons for future Ephs, — and those lessons should be learned rather than lived.

UPDATE: An earlier version used the term “predator”, which is probably too loaded a word for this discussion. I have also done some minor editing and removed some inappropriate speculation. Thanks to a regular reader for the comments.